The current process against Prof. Clara Ponsati of St. Andrew’s University is a misuse of the European Arrest Warrant (EAW).
We all have an interest that criminals, especially serious criminals, cannot escape justice in an increasingly open Europe by hopping across a border. But the EAW can only function if the states have confidence in the justice systems of the other states entitled to issue a warrant. This must mean especially that it is not being misused for political purposes.
The background to the charges against Prof. Ponsati is political not criminal.
There have been great political developments in Spain since the death of Franco, and Spain’s accession to the EU. The Basque land for instance was brutally suppressed by Franco: Guernica was only the start of decades of repression which involved torture and tens of thousands of executions by the Falangist state. This gave rise to the terrorism and murders perpetrated by ETA. The Spanish state negotiated with (sometimes newly) peaceful Basque politicians. A deal was done. ETA recently finally laid down its arms.
The Catalan Independistas have always pursued their aims by democratic means and have never used nor threatened violence. Perhaps 45% of Catalans support full independence, around a further 30% want a redefined relationship with the rest of Spain. In 2006 a deal was done: it was approved by the Catalan people in a referendum by a majority of 78% and also by the Spanish national parliament.
It was blocked by an application from Mariano Rajoy’s People’s Party (PP) to the Spanish constitutional court. Since then political developments have been blocked by the PP and that court. The fiscal arrangements which apply to the Basque land were deemed ‘not negotiable’ by Rajoy. Constitutional changes rejected in 2010 as ‘unconstitutional’ in the case of Catalonia passed without problem for Andalusia in 2007. Clearly, the Spanish government and constitutional court’s understanding of ‘constitutional’ and ‘negotiable’ is political and not legal.
Rajoy and the People’s Party…
Señor “Law and Order” Rajoy was one of the PP’s founders, is currently its head, and has been its moving spirit for decades. It is the ‘democratic’ version of Franco’s Falange, and is possibly the most corrupt political party in Europe, winning that Oscar against very strong competition.
“Case after case proves that the PP engaged in illegal funding at the national and regional levels. Its actions have scandalized Spanish society, … And Mariano Rajoy is ultimately responsible for this behavior and the lack of response to it.” El Pais
This is the prime minister and party which claims simply to be upholding the law?
The Spanish government has repressed with the most brutal means demonstrations in favour of independence as being ‘unconstitutional’, but (not so) strangely anti-democratic and openly Falangist demonstrations in Madrid in favour of ‘unity’ have met with no reaction by the police.
…and the Spanish constitution and constitutional court
The Spanish constitution was drawn up in the shadow of Franco’s death and threats by the Falangists and some elements in the army of re-imposing Fascism. Compromises were made. To present this constitution as the last word in constitutional law embodying universal values which must be upheld is disingenuous. It is a flawed work in progress.
The Spanish constitutional court charged with interpreting that constitution is also not an independent and universally respected institution. It is not even a formal part of the Spanish judiciary, it is a political body appointed by politicians: “The court consists of twelve magistrates (justices) who serve for nine-year terms. Four of these are nominated by the Congress of Deputies, four by the Senate, two by the executive branch of the government, and two by the General Council of the Judiciary.”
Conditions under which Prof. Ponsati would be held
In this BBC article the conditions under which other Catalan ex-ministers are held are described. They have not been convicted: but they are being held on remand for months with dangerous convicted murderers. They were treated in a humiliating way during the arrest process, including verbal abuse by the police, aggressive handcuffing, and strip searching. Is this treatment that Rajoy understands as ‘upholding the law’? It appears to be more motivated by the wish to humiliate and intimidate than any security concerns.
Implications of this case for Scottish and European justice
By examining this application under the EAW very carefully, the Scottish courts would be protecting justice in Scotland and Europe from the arbitrary misuse of law by dark forces which threaten not just democratic politics in Spain, but also the continued survival of the EAW itself.
Scottish justice must do what the Belgian courts were in the process of doing: examine in detail the context of the charges under which Clara Ponsati would be extradited. By no coincidence the Spanish courts withdrew the warrant when this detailed examination was about to start in the Belgian courts. Spanish justice (and the intimately related politics) apparently shies away from the examination and light of impartial justice.
Some of that light must be shone by the Scottish courts on a murky and tendentious case against a democratic politician and mild academic who teaches in Scotland’s oldest university.
John Stuart Wilson says
“The Catalan Independistas have always pursued their aims by democratic means”
There was nothing democratic about the farcical “referendum” of last October. It was a figleaf for a coup attempt, financed by Puigdemont’s government by looting millions of euros from the public purse. Ponsati was part of that government. She cannot avoid her responsibility to answer questions about her involvement by running away, first to Belgium, now to Scotland.
If the separatists believe the Spanish constitution has to be changed, then why are they working toward that end instead of declaring UDI? It has been amended twice in my life time, so a third is not impossible.
Is the SNP supporting Ponsati because it wants to prep us all for the day that it unilaterally declares that its leadership is a higher authority than the UK constitution?
Joseph MELLON says
> If the separatists believe the Spanish constitution has to be changed, then why are they (not?) working toward that end …
They had been since at least 2000.
As mentioned in the article (always good to read it first!), this resulted in a proposal to change the status of Catalonia (in 2006), which was approved by the Spanish parliament, the Catalan parliament and the Catalan populace in a referendum. An application was made by the PP to the constitutional ‘court’ which has blocked any change in an obdurate way ever since. (The proposal was finally blocked by the constitutional court in 2010)
The Spanish constitutional ‘court’ is not part of the Spanish judiciary (see the link above) it is a political body. Many of its members have more problems with the idea of democracy than the world view of Franco. That is: the interpretation of the law under which constitutional change has been blocked is Falangist and not democratic.
We are talking about politics here, not criminal law.
John Stuart Wilson says
“They had been since at least 2000.”
Really? What examples? What you cite is definitely NOT an attempt to change the constitution.
“The Spanish constitutional ‘court’ is not part of the Spanish judiciary (see the link above) it is a political body”
Rubbish. Complete and utter.
Joseph MELLON says
The description of the major attempt at reform is *in the comment you replied to* John!
“a proposal to change the status of Catalonia (in 2006), which was approved by the Spanish parliament, the Catalan parliament and the Catalan populace in a referendum. An application was made by the PP to the constitutional ‘court’ which has blocked any change in an obdurate way ever since. (The proposal was finally blocked by the constitutional court in 2010)”
That reform proposal was being prepared from at least 2000. We have had reform freeze since effectively 2006.
John Stuart Wilson says
That is a piece of legislation. It is not an attempt to amend the constitution.
Joseph MELLON says
…and of course the October referendum was the main plank in the program of the then Catalan government: the voters in Catalonia had voted to hold a referendum, and the Catalan cabinet were fulfilling their promise to the voters.
The declaration of the referendum as ‘unconstitutional’ was a political decision, by a political body, not primarily a legal one.
The Spanish government could have campaigned in the referendum, conducted a ‘we love you Catalonia, don’t leave us, we will work out how to live together’… But that isn’t how Falangists operate. The infamous Guardia Civile started arresting elected politicians, beating up old ladies and disrupting the referendum – so yes, in the end it was a bit of a farce.
John Stuart Wilson says
The Spanish constitution only allows consultative non-binding referendums (article 92), and clearly states that the ability to organise a referendum is an exclusive power of the central government (article 149).
Puigdemont decided that he could unilaterally suspend both provisions.
He’s getting no sympathy from either the EU or the UN because both bodies told him in no uncertain terms that what he was doing was illegitimate and illegal.
Joseph MELLON says
Each Spanish constituant ‘nation’ or region has its own special ‘deal’ for how it relates to the Spanish state. You might wonder why proposals for constitutional and financial reform which were approved without problem for Andalusia and the Basque land were declared ‘unconstitutional’ for Catalonia.
The answer is of course money. Rajoy’s People’s Party – which has almost no support in Catalonia – is ‘the most corrupt party in Europe’ embezzling an astonishing 200 billion per year by one estimate. The money has to come from somewhere, and it cannot come from the Extremadura or Andalusia.
The PP have no affection for Catalonia, but they also have as little intention of letting it go its own way as a pimp has of letting his best earning ‘asset’ walk free.
Roger Livermore on behalf of ASAP-NHS says
It might be an idea to look at the Scottish justice system. Compare it with the World Justice Project criteria that compares 113 nations. It seems that our is unlawful, unconstituional, dysfunctional, and has the hallmarks of corruption. The Scotland Act 1998 is fatally flawed in that it placed our justice system in the hands of two Scottish Ministers ( the law officers- the Lord Advcoate and the Solicitor General), and defined as the Scottish Government. The Act generates major contraventions of ECHR (articles 2, 3 and 6), and can be considered to be unlawful, and perhaps so too is the government. Look at the role of the law officers, are they constantly breaking the law? ( Police and Fire Reform (Scotland) Act 2012 and natural law of ‘nemo judex in causa sua’). The 1998 Act removed the separation of the powers in Scotland, and so we cannot be considered constituional. We wouldf fail the tests of a constituional democracy (Lisbon Treaty, Copenhagen Criteria). Who drafted and passed the Scotland Act 1998? What were they thinking of? Where was the legal and constituional competence?
Rather than the required independent prosection service we have the Scottish government- run service (COPFS). The governmnet also runs the unlawful system of investigating deaths (we are the only part of the UK that does not have the effective, independent and legally-compliant HM Coroner system).
The two ministers unlawfully direct the police on investigations, whilst other ministrers appoint the Scottish Police Authority and other related bodies. This means we meet the definition of a police state. The law officers stated loyalty is to the Scottish Government (Lord Advcoate James Wolffe QC, The Times April 1st 2017) rather than the correct answer – the law and the constituion. Such bias looks contrary to the legal codes of conduct.
The Scottish judiciary only take criminal cases presented to them by the Scottish Government. Government ministers decide who is prosecuted and who is not. What errors have there been ? (the answer is thousands and on-going). The judiciary only do the investigation of deaths presented to them by the law officers ( only 25-30 FAI a year, and none of the thousands of preventable deaths in NHS Scotland hospitals). Our judiciary does not meet the international definition of being independent. The law officers will not and cannot prosecute themselves and so they and the government are placed beyond the law. The rule of law has been rejected by Scotish Ministers. They also explicitly refuse to implement the law on patient safety (think 5 preventable deaths a day in Scotland that could be saved). We have a worse legal system than Bangladesh. Our current system was in effect made unlawful 65 years ago. This is the wreck of the once respected Scottiosh justice system. The Scotland Act did it. Did anyone mention corruption? Where to begin?
David Gow says
Yes, as we have said by email, please go ahead…